Attorney Justin Prochnow of Greenberg Traurig, LLP in Denver graciously shared his time with us here at The Condiment Marketing Co. to describe some food marketing guidelines and appropriate health claims food brands need to understand. He also explained three things a food company can and should do to avoid the pitfalls.

#1: Have An Attorney On Speed Dial.

Hire an attorney to review your packaging and any claims you make in your marketing. You may not think you have $500 for counsel, but you’ll be wishing you spent the money when you find out you’re part of a class action lawsuit.

“It’s not always a regulatory issue that could get a food company in trouble,” Prochnow explained. “In some cases it’s a class action lawsuit from a large plaintiff’s firm that doesn’t like your use of ‘all natural.’”

He also said that much of his work with food companies is not that involved. He can often review a list of proposed claims in less than an hour over email. It turns out legal help is not as expensive as you might think.

#2:  Take Care In Making Any Claims.

Prochnow described two types of claims that can create real problems for food companies. First, as briefly mentioned above, the claim “all natural” is the claim receiving the most attention in class action lawsuits.  Companies have been moving away from “all natural” claims due to litigation risks and more toward claims like “made from natural ingredients” or toward claims discussing what a product doesn’t have such as “no artificial colors, flavors, or preservatives.”

“Unless I pulled it out of the ground and put it in a box, I wouldn’t call it ‘all natural’,” he said.

Prochnow went on to say that he’s seen many cases where the defendant did have scientific evidence to back up a natural claim, but those cases were still expensive to defend. So expensive that it might not be worth using the term in your marketing at all.

Second, never make a claim that your product or product’s ingredients work to diagnose, treat, or cure a disease, which is defined as any dysfunction within the body. As an alternative, talk about supporting, maintaining, or balancing an already healthy body.

Prochnow said, “Under a structure function claim, you can talk about supporting healthy bone structure but not treating osteoporosis. You can talk about immune support but not treating cold and flu.”

#3: Choose Your Testimonials Wisely.

As marketing consultants we will tell you that testimonials are always a good idea. However, after talking to Mr. Prochnow, we’ll also tell you to be choosy in the testimonials you publish.

For starters, do not publish any testimonials that make a claim without scientific proof behind it (or that falls in one of the two categories mentioned above). When publishing the words of others you assume them to be your own.

Next, you must disclose any relationship you have to the person giving the testimonial. For instance, if you provided a free product or money to the person giving the testimonial, you must disclose that information. If you are related to the person giving that testimonial, you must disclose that as well.

While a disclosure is necessary, it could weaken the promotion. So, if you can, publish testimonials that don’t require a disclosure.


A big thank you to Mr. Prochnow for sharing his time and expertise. And…please note: The information contained in this post is not legal advice. Please seek the advice of an attorney for counsel specific to your business and your needs.

Sara Lancaster

About Sara Lancaster

Sara is The Condiment Marketing Co.’s founder and creative director. She oversees client relationships, strategic marketing plans, as well as a bit of copywriting and social media management.